- The High Court dismissed all claims for unlawful arrest, detention, constitutional damages and malicious prosecution.
- The judge held that entering a prohibited beach during the Level 4 lockdown was an offence, no matter the reason.
- Family ordered to pay the Minister of Police’s legal costs after failing to prove their claims.
A frantic effort by two parents to save their toddler from Muizenberg Beach during South Africa’s Level 4 lockdown led to their arrest.
The High Court in the Western Cape has now ruled that police acted within the law, rejecting the family's claims and upholding the strict lockdown ban on entering beaches.
The legal action followed an incident on 4 May 2020, during South Africa’s Alert Level 4 lockdown. At the time, residents were allowed to walk, run or cycle during limited morning hours, but beaches were strictly closed to the public.
The parents said they only stepped onto the beach for a moment after their 21-month-old daughter unexpectedly ran onto the sand while the family was walking along the promenade.
They argued that the arrest, detention and later criminal charges violated their constitutional rights, put them and their child at unnecessary risk of Covid-19, and ultimately forced them to leave South Africa. The family sought more than R537 000 in damages for unlawful arrest and detention, infringement of dignity and malicious prosecution.
Toddler runs onto the beach
The father explained to the court that the family lived about 500 metres from Muizenberg Beach and had gone out for their permitted morning exercise. After taking his daughter out of a baby carrier on the boardwalk, she suddenly dashed onto the beach while he was briefly distracted.
He said he immediately followed her and found her sitting in the sand. His wife joined them moments later and, despite their repeated attempts to persuade the toddler to leave, she refused and became upset.
The father said he even waved at the approaching police officers, thinking they were concerned about their crying child. Instead, the officers arrested both parents.
He testified that one officer called him “stupid” and warned that his daughter could die from Covid-19, while Brigadier Vassie Naidoo allegedly told him he was “in big trouble” before arresting him.
The mother echoed his account, explaining that she only entered the beach because, as she put it, “it was a natural reaction of a mother to retrieve her young child.”
She also described the emotional toll, saying she became fearful of the police and stayed inside their apartment after the incident. She told the court she was very anxious that the criminal charges would affect her immigration status, since she needed a clean police clearance certificate to apply for a future visa.
Police say they enforced lockdown regulations
The Minister of Police disputed the family’s version, saying that officers had received complaints about people using the beach unlawfully during the lockdown and were carrying out visible patrols that morning.
According to the police, officers found the family on the beach, told them they were breaking the Disaster Management regulations, and gave them a chance to explain before making the arrests.
Police also denied that the family was exposed to unsafe Covid-19 conditions while in custody, saying that health protocols like masks and social distancing were followed at the police station.
Naidoo denied claims that he intimidated or threatened the family during the arrest process. He said the plaintiffs were “over-exaggerating” and insisted he did not treat them without dignity.
He also denied being responsible for the family’s decision to leave South Africa, telling the court that it was entirely their own choice. When the charges were later withdrawn, Naidoo commented, “It was good luck to them.”
Naidoo maintained that his role was simply to enforce the law. “I did my job as a police officer,” he said, adding that deciding guilt “was up to the court.”
Judge finds the arrest was lawful
After considering all the evidence, Judge M Pangarker found that the lockdown regulations made it clear that beaches were off-limits under Alert Level 4, and that simply entering the beach was an offence.
In a central finding, Judge Pangarker wrote, “Whether the person sits, stands or lies on the beach is immaterial,” and added that “the mere fact that a person was on a beach, for whatever reason, was punishable as an offence.”
The court found that because Naidoo personally saw the family on the beach, Section 40(1)(a) of the Criminal Procedure Act allowed him to arrest them without a warrant. Judge Pangarker also agreed with Naidoo that it was not up to the police to decide guilt, but for a criminal court to determine.
The judge concluded that police had established a legal basis for both the arrest and detention, so the family’s claim for unlawful deprivation of liberty failed.
Constitutional damages and malicious prosecution claims fail
The family also asked for constitutional damages, saying police humiliated them, violated their dignity and unnecessarily exposed them and their child to Covid-19 risk while they were detained. The court found that there was not enough evidence to support those allegations.
The claim of malicious prosecution was also dismissed. Although the criminal charges were eventually withdrawn before trial, Judge Pangarker found there was no evidence that police acted without reasonable grounds or with any malice when bringing those charges.
Judge Pangarker further held that the withdrawal of the charges didn’t count as a failed prosecution in law, since there was no criminal trial or acquittal. The court concluded that the requirements for malicious prosecution were not met.
Claims dismissed with costs
After rejecting all of the family’s claims, the High Court dismissed the action entirely.
Judge Pangarker ordered that the claims for unlawful arrest and detention, breach of constitutional rights and malicious prosecution all be dismissed, and directed the family to pay the Minister of Police’s legal costs, including counsel’s fees.
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